35SPF trustee may apply to Supreme Court to secure continuing funding of claims

#### 35 SPF trustee may apply to Supreme Court to secure continuing funding of claims 35 SPF trustee may apply to Supreme Court to secure continuing funding of claims > > (1) Applications to Supreme Court for approved payment scheme orders The SPF trustee may, with the approval of the Minister, apply to the Supreme Court for orders under subsection (5) if it appears reasonably likely that, for a period of time, there will be insufficient funds for all payable liabilities of a liable entity to be paid in full as and when they fall due for payment. > > > (2) Rationing directions from SPF trustee pending application approval The SPF trustee may, by written order served on a liable entity (a rationing direction), direct the entity to defer the payment of payable liabilities (whether in whole or in part) in a manner consistent with the rationing requirements for a scheme set out in subsection (7) if— > > > > > (a) the SPF trustee has sought but not received approval from the Minister to make an application to the Supreme Court under subsection (1) in respect of the entity, and > > > > > (b) the SPF trustee is satisfied that the insufficiency of funds to pay the payable liabilities of the entity requires the urgent rationing of payments pending the receipt of approval from the Minister. > > > (3) A liable entity is required and authorised to comply with any rationing direction given to it until the direction ceases to have effect. > > > (4) Unless the Supreme Court orders otherwise (whether in an application under this section or under a provision of Division 9) or the rationing direction is earlier revoked by the SPF trustee, a rationing direction has effect until the Supreme Court determines the application in respect of which approval is sought from the Minister. > > > > Note— > > > > Division 9 contains provisions that enable certain persons (such as the Minister) to apply to the Supreme Court for orders to remedy or restrain a contravention of this Part (see section 54) or for advice or directions concerning the operation of this Part (see section 55). > > > (5) Supreme Court may make orders establishing approved payment scheme If the Supreme Court is satisfied on an application under subsection (1) that it is likely that there will be insufficient funds for all payable liabilities of a liable entity to be paid in full as and when they fall due for payment, the Supreme Court may make an order approving a scheme (an approved payment scheme) for the payment by instalments of the full amount of payable liabilities due, or the deferral of payment of payable liabilities of the entity, during the period specified by the order (the scheme period). > > > (6) In specifying the scheme period— > > > > > (a) the Supreme Court is to take into account the anticipated duration of the period before the liable entity will or is likely to have sufficient funds to pay payable liabilities in full as and when they fall due for payment instead of paying them by instalments or deferring payment, and > > > > > (b) if the scheme period is to commence before the time it is anticipated that there will be insufficient funds—the Supreme Court is to be satisfied that the early commencement of the scheme period will result in claimants for proven personal asbestos claims being treated more equally in relation to the payment of their claims than would otherwise be the case. > > > (7) The Supreme Court may not approve a scheme for the payment in instalments or deferral of payment of payable liabilities of a liable entity during the scheme period unless the scheme provides for the following— > > > > > (a) the payment in full of the operating expenses and claims processing expenses of the entity during the period in priority over payable liabilities of the kind referred to in paragraph (b), > > > > > (b) subject to subsections (8) and (8A)—the payment in instalments of payable liabilities that are liabilities to pay proven personal asbestos claims during the period (calculated on an appropriate proportionate basis among claimants whose claims are payable when the period commences or become payable during that period), but not in a manner that discriminates between claimants by reference to the nature or extent of the loss or damage sustained, > > > > > (c) the deferral during the period of the payment of payable liabilities that are liabilities to pay proven personal asbestos contribution claims, > > > > > (d) the deferral during the period of the payment of payable liabilities that are liabilities to pay pre-commencement claims (other than proven personal asbestos claims), > > > > > (e) the interest rate to be applied in calculating the interest payable on that part of any payable liability that would otherwise attract interest because it is not paid during the scheme period because of the operation of the scheme. > > > (7A) An interest rate approved as referred to in subsection (7) (e)— > > > > > (a) need not be a commercial interest rate, but is to be an interest rate that the Supreme Court is satisfied is a rate that makes reasonable allowance for inflation while minimising the liabilities of the liable entity and the cost of the scheme, and > > > > > (b) applies to the exclusion of any other interest rate that would otherwise have been applicable in determining the interest to be paid to any payable claimant in respect of any part of a payable liability that is not paid during the scheme period because of the operation of the scheme. > > > (8) The Supreme Court may approve a scheme that takes into account— > > > > > (a) any amounts that personal asbestos claimants may receive during the scheme period under section 30 (including regulations made for the purposes of that section), and > > > > > (b) any payments, or deferral of payments, of payable liabilities made by a liable entity in accordance with any rationing direction in force immediately before the application to the Court was made. > > > (8A) In addition to the matters for which a scheme must provide under subsection (7), the Supreme Court may approve a scheme that provides for any or all of the following— > > > > > (a) the payment in full of liabilities to pay proven personal asbestos claims that are small claims (but only if the Supreme Court is satisfied that there will be sufficient funding to make such payments and the payments referred to in subsection (7) (a)), > > > > > (b) different payment options from which claimants may elect to be paid for the payment by instalments of proven personal asbestos claims that are not small claims (including a default payment option in the event that a claimant makes no election). > > > (9) Liable entity and SPF trustee may make payments only in accordance with approved payment scheme While an approved payment scheme is in force— > > > > > (a) a liable entity is authorised to pay payable liabilities or to refuse to pay payable liabilities that are deferred, but only to the extent and in accordance with the terms of the scheme, and > > > > > (b) the SPF trustee may make payments under section 36 only to the extent and in accordance with the terms of the scheme. > > > (10) Applications to vary or revoke approved payment scheme orders The SPF trustee may, with the approval of the Minister, apply to the Supreme Court for an order to revoke or vary any order made under subsection (5). > > > (11) On any such application, the Supreme Court may revoke or vary the order concerned. > > > (12) Automatic revocation of approved payment scheme by notice An order under subsection (5) is automatically revoked if the SPF trustee, with the approval of the Minister, gives the Supreme Court notice that sufficient funds are or will become available to pay in full the instalments provided for by the approved payment scheme, the ongoing operating expenses and claims processing expenses of the liable entity and any deferred claims. > > > (13) Effect of approved payment scheme and rationing directions Despite the provisions of the [Limitation Act 1969](/view/html/inforce/current/act-1969-031) or any other legislation or law (whether written or unwritten), the following provisions apply if a payable liability is payable by instalments or is deferred under an approved payment scheme or a rationing direction— > > > > > (a) The payable claimant may assert the liability (whether by making a claim to the liable entity or bringing proceedings to establish the amount payable in respect of the liability). > > > > > (b) If proceedings are brought or are pending before a court or other tribunal in respect of the liability— > > > > > > > (i) the court or tribunal may determine the amount payable in respect of the liability (if any), and > > > > > > > (ii) in the case of a liability payable by instalments—the instalments that are payable under the approved payment scheme may be recovered by the claimant during the scheme period, and > > > > > > > (iii) in the case of a claim in respect of which payment is deferred—any amount awarded by the court or tribunal may not be recovered by the claimant until the liability ceases to be deferred under the approved payment scheme or rationing direction. > > > > > (c) If paragraph (b) operates to preclude the bringing, continuation or maintenance of proceedings in respect of the enforcement of the liability, any limitation period applicable to the enforcement of the liability is taken to stop running on the day on which the scheme period commences and to recommence to run on the day after the period ends. > > > (14) An order under this section may not be made in relation to a liable entity after the finalisation day in relation to the entity. > > **s 35:** Am 2006 No 108, Sch 1 \[16\]; 2009 No 116, Sch 1 \[13\]–\[18\].